2.1.8 Guiding principles for the process

Agreeing on guiding principles: An increasingly important task

In developing a constitution-making process, it is important for the main groups involved to reach agreement on a set of principles intended to guide the process. These are often referred to as “guiding principles” (and sometimes as “constitutional principles,” or—in a few cases— “immutable principles”).

Such principles can address both how the process is to be conducted (for example, requiring that it should be consultative and participatory) and the content of the constitution that it is expected will result. Guiding principles tend to reflect key aspects of the historical context in which the particular process is taking place, and also the broader international norms, standards, and precedents outlined below.

Agreeing on guiding principles can have a number of important benefits, particularly in a situation of conflict or transition. Such principles can help ensure that the process is transparent and has legitimacy in the eyes of the public. All groups with interests in the process will likely be better prepared and more aware of how they can participate in and monitor the progress of the process. Agreed-upon principles regarding the contents of the constitution can be particularlyimportant in conflict, postconflict, and transitional situations where there has been a history of abuse by the state and other actors; principles can provide a shared vision of a better future. They can also provide assurance to minority groups facing the prospect of a loss of powers or privileges in a majority-dominated constitution-making process.

It is not always necessary to have guiding principles—for example, where constitution-making processes develop gradually, without the parties necessarily agreeing on the details. There are cases in which attempting to agree on principles in advance may prove to be divisive.

The nature of guiding principles

In most cases, guiding principles are terms of reference for the process as a whole. They are intended to provide guidance for the process without being unduly restrictive. They are usually regarded as political obligations rather than binding and enforceable legal principles. For that reason, they are usually expressed in general terms rather than in precise and directive language.

In a few cases, mainly involving processes intended to resolve serious conflict, the principles are extended to provide detailed provisions about the process and about what must be included in the constitution, with verification required before the proposed constitution can be brought into operation. In the process in South Africa [1996], for example, the main parties involved in negotiating the transition from the apartheid regime agreed to an elected constitutional assembly that would consult the people on the final constitution, and also to thirty-four constitutional principles giving detailed directions on the content of the new constitution to be developed by the constitutional assembly. They included the form and structures of government; relationships among national and subnational governments intended to ensure local autonomy; protection of the interests of significant minorities; protection of human rights; creation of independent public institutions; and the entrenchment of the constitution through amendment processes, which were to include roles for the provinces in the case of amendments affecting their interests. All of this was included in an interim constitution, which also created a constitutional court that had the task of verifying whether or not the thirty-four principles were reflected in the final constitution.

Principles in documents that establish constitution-making processes

Such principles are usually stated in the foundation documents for a process, such as the legislation establishing a constitutional commission or constituent assembly, the terms of reference for a parliamentary committee on constitutional development, or a peace agreement or interim constitution providing for a constitution-making process intended to contribute to conflict resolution. They may also be found (in varying degrees of detail) in international agreements that provide for constitution-making processes (as in the Bonn Agreement in relation to Afghanistan and the Paris Agreement for Cambodia) and in United Nations decisions and mission directives about processes in which it plays a significant role, for example in Namibia and Timor-Leste.

Guiding principles: A common phenomenon

There has been widespread interest in guiding constitutional principles since they were used in the South African process—so much so that some people have the impression that it was the first case in which they were used. But guiding principles of various kinds have been used in many processes, both before and since the South African experience. It is true, however, that they are seldom so rigorously enforceable as they were in South Africa. Earlier examples include the terms of reference that the British government set for the Indian independence constitution- making process that began late in 1946; the constitutional conferences involved in making some other decolonizing constitutions in the 1950s and 1960s; the terms of reference that Papua New Guinea’s colonial legislature provided to its constitutional planning committee in 1972; and Namibia’s “Constitutional Principles,” agreed to by Namibian freedom fighters (the South West Africa People’s Organization) and international community actors in 1982, seven years before the Namibian constituent assembly began meeting. The Indian process provided its own principles, in the form of the “Objectives Resolution” moved by Nehru early in the life of the constituent assembly. There have also been many examples of guiding principles being used since the South African case, including the Bougainville process [2004], the Burundi process [2005], the two Kenya processes [2005; 2010], and the Nepal process [ongoing] (wherein the interim constitution of 2007 provides for a number of important principles, though they are not clearly related to the constitution-making process, as opposed to functions of the state generally). The Bolivian constituent assembly included a committee on the “Vision of the Nation,” which developed principles for the rest of the process.

Sources of principles for constitution-making processes

The design and the operation of both national and subnational constitution-making processes are increasingly influenced, and even determined, by a wide range of norms, standards, and precedents (including precedents provided by other constitution-making processes), and inevitably they are also a source for guiding constitutional principles. human rights norms are having an increasing influence on the design of processes, in particular the emerging right to “democratic participation” based on the United Nations Declaration of Human Rights (1948, article 21) and the International Covenant on Civil and Political Rights (article 25), as well as various other United Nations conventions and declarations. Similarly, a number of United Nations and regional conventions and declarations on various aspects of human rights are having significant effects on the contents of constitutions, and so also on guiding principles intended to influence the process of making decisions on constitutions. There are also less formal sources of influence, such as international community concerns about good governance, independent accountability institutions, transitional justice, and so on—all of which have an impact on the framing of options for constitutions, and so on the content of guiding principles.

Who decides on the guiding principles?

Decisions on guiding principles can be made by a wide range of actors. In the case of decolonizing constitutions, the colonial government, or the local legislature established by the colonial government, has tended to frame terms of reference meant to keep processes within limits acceptable to the colonizers. In many postconflict situations, these principles are negotiated among the parties, and are included in peace agreements and—increasingly—in interim constitutions. In many instances where the international community is involved in a peace process, it plays a major part in the negotiation or even the determination of the principles. In other conflict and postconflict situations, the parties to the peace process agree on them. In still other cases, the government in power includes them in legislation establishing the process. Sometimes the government has consulted other parties with a view to ensuring that the process is as free and open as possible. In other cases, the government may be aiming to control or restrict what other parties can do during the process.

In many cases, however, those most interested in the development of guiding principles will not be involved in, or will not be controlling, the constitution-making process the principles are intended to guide. They often seek to use the principles to reduce the likelihood of their interests being adversely affected by choices made in the process. In conflict and postconflict situations, it will usually be important to have the widest possible range of interest groups involved in the process of agreeing on any guiding principles.

Sets of principles that are intended to be verified—sometimes called “immutable principles”— are not common. They are developed mainly in situations of deep conflict, such as in South Africa and Burundi, with the aim of providing assurances to a party (or parties) with deep concerns about their future (in relation to security, power, and similar issues). This is achieved by the immutable principles determining aspects of the contents of the ultimate constitution. As a result, they are often quite long and detailed, as in South Africa’s interim constitution in 1994, and in the Arusha Peace and Reconciliation Agreement for Burundi in 2000. The remarkably detailed principles in the Burundi case appeared in a protocol to the Peace and

Box 5. South Africa: The certification judgments

Many groups challenged particular aspects of the draft of the final constitution on the basis that they were inconsistent with the guiding principles for the final constitution stated in the interim constitution. According to the court, there were “47 advocates representing 29 political parties, organisations and individuals.” The case was fully argued, like any other litigation, and the court gave a reasoned 296-page decision in which it held that nine aspects of the draft constitution indeed did not meet the principles. Most important were the provisions on local government. The constitutional assembly had to revise these aspects, and when the constitution came back to the court it was certified as meeting the principles.

Reconciliation Agreement titled Democracy and Good Governance, which contained long and detailed “Constitutional Principles of the Post-Transition Constitution” that came close to being a complete constitution. In both cases, constitutional courts were given the task of verifying that the principles had been adhered to. A similar approach was used in Angola in 2010; the constitutional court certified that the constitution newly adopted by the parliament largely complied with principles laid down in the existing constitution.

An important reason for the detailed and verifiable principles in these cases was that they accommodated concerns of minority parties who had previously dominated the state and who could see that their interests were likely to be adversely affected by a new constitution produced by a process dominated by the previously excluded majority. By agreeing in advance on the detailed principles that the final constitution must adhere to, the minority groups were given strong assurances that their interests would be protected. That encouraged them to join rather than stay outside the process, reducing the risk that they would undermine the process. On the other hand, because the principles were agreed on by the parties to the conflict, and were intended to be verifiable (or enforceable), they were intended as limits on what could be decided in the course of the consultative and participatory constitution-making processes that followed the agreement on the principles.

In Burundi [2005], the draft constitution was withdrawn from the constitutional court when it failed to give a ruling in the limited time provided for by the Arusha agreement, and was instead submitted to popular judgment by referendum (the next step in the agreed-on process), where it was overwhelmingly approved. Perhaps because the principles in the agreement had come close to representing a complete constitution, the approval of the draft constitution by referendum was seen as providing sufficient verification that the principles had been adhered to.

While a careful and skilled analysis of a constitution such as the one in the South African certification case may be valuable, the results of court involvement are not necessarily beneficial. Six of the seven judges of the constitutional court of Angola had been appointed by President dos Santos; they largely approved the new constitution, which has been described as tailor-made for allowing dos Santos to remain in power.

Other cases of verifiable principles

In Namibia, the international community played a role in both making and verifying guiding principles, which were first agreed to in 1982 by the South West Africa People’s Organization, the Organization of African Unity, states adjacent to Namibia, and the United States, subsequently approved (indirectly) by the United Nations Security Council, and then adopted in 1989 by the Namibian constituent assembly. While no enforcement body was provided for in the principles, their having been approved by the United Nations was regarded as giving that body an enforcement role. In July 1990 the United Nations Secretary-General reported to the Security Council that the new constitution complied with the principles.

In Bougainville, Papua New Guinea, a 2001 constitutional settlement to a separatist conflict provided Bougainville with both the right to hold a referendum on independence, deferred for

ten to fifteen years, and a high degree of autonomy in the meantime. Autonomy included the power to make a subnational constitution providing for the structures and processes of a Bougainville government. It had to be made by a participatory process, include various democratic features, and adhere to “internationally accepted standards of good governance as they are applicable to and implemented in the circumstances of Bougainville and Papua New Guinea.” Concerns on the part of the Papua New Guinea government that the Bougainville constitution might go further than agreed or might unfairly favor particular groups were dealt with by specifying that the constitution would not come into operation until it was endorsed by Papua New Guinea, while at the same time limiting its grounds for refusing endorsement to a situation wherein it judged that the requirements of the constitutional settlement had not been met. To minimize the risk of endorsement being refused, the constitutional settlement required the Bougainville constitution-makers to consult extensively with the Papua New Guinea government in the process of developing the draft constitution.

There are other possible, less formal ways of trying to guarantee compliance with principles. They could be made the basis for the civic education of the public. They could—if brief enough—be printed on banners displayed in the venue of the constituent assembly. And they could be built into the oath of office of formally appointed or elected constitution-makers.

How are principles used?

Where principles are verifiable, there is a strong incentive for those involved in the process to take care at every stage that proposals for the constitution are taking full account of the principles. This will be important not just in the process of drafting the constitution, but also when proposals are being made during public participation efforts, or being debated in a constitutional commission, constituent assembly, or other deliberative body. In practice it may be important for a particular institution or body within the process to have responsibility for checking that the principles are being met. For example, in a constitutional commission or a constituent assembly, a particular committee could be given that task. In processes where the principles are more in the nature of political obligations or terms of reference, it will still usually be important, for the legitimacy of the process, that the principles are seen to be adhered to, and so a similar allocation of responsibilities for internal verification by those involved in the process will often be required.

Must guiding principles be followed?

In most cases guiding principles are expressed in general terms that are intended to guide rather than to restrict. Where a process is highly participatory, it would often be difficult to use guiding principles to limit choices being made as part of the process. The terms of the principles sometimes even highlight a dilemma that could arise if they were to be enforced. For example, the laws that have provided for Kenya’s two processes [2005; 2010] have required that the institutions established to undertake the processes give effect to generally laudable principles (such as accountability, accommodation of diversity, and respect for universal principles of human rights) while also ensuring “that the final outcome of the review process faithfully reflects the wishes of the people of Kenya,” with no guidance about handling situations where the people’s wishes might be contrary to the principles.

Comments

The experience of South Africa has perhaps imparted a rose-tinted hue to the question of guiding principles. While it is not necessarily a bad thing that principles be reached during a time when careful thought is possible, or that important political negotiations should shape the future constitution-making process, there is an antidemocratic quality to such principles. They are devised by those in a position of power at point A in the process in order to limit the possibilities of those who are making decisions at a later point. Those in power at point A may have their own interests in mind, and even if they are acting in the interests of the nation, their perspectives on those interests may be narrow. In Egypt [1971], President Sadat gave certain guidelines to the national assembly on the constitution, including the statement that 50 percent of the elected bodies were to comprise fellahin and workers. In Nigeria in 1988 the military president told the constituent assembly that there were certain “no-go areas”—including the federal system, the presidential system of government, and having no state religion.

Often there is no choice on the matter of principles. But if there is a possibility but not an inevitability of developing principles, the following points might be helpful:

principles may protect the interests of minorities who may not have much sympathy from the population at large;

discussion and decisions on principles may have value when developed by the constitution- makers themselves, to focus discussion on broad issues rather than getting prematurely into detail;

sometimes interest at a later stage focuses on “moral issues” such as abortion, and it may be helpful to have established early agreement on certain fundamentals;

similarly, political manipulation may come more to the fore at later stages and interest in fundamentals may diminish; and

it may sound antidemocratic to say so, but using principles to avoid what may turn out to be the dictatorship of the majority is not necessarily a bad thing—a major purpose of the modern constitution is precisely to limit that dictatorship once the constitution has been adopted.

On the other hand, the following may also be true:

principles may hold back a genuine process of reform, especially if they are determined by an outgoing regime;

developing principles may be time-consuming; and

to avoid the risks of the process being “straitjacketed,” the principles may have to be so general as not to be very helpful.